Today’s Bright Idea comes from Professor Bonnie Honig. Professor Honig, also Senior Research Fellow at the American Bar Foundation and appointed (courtesy) at Northwestern Law School, is Sarah Rebecca Roland Professor of Political Science. Professor Honig’s work has appeared in the American Political Science Review, Political Theory, Strategies, Boston Review, Social Text, Social Research, and Triquarterly Review. She has written several books including, Political Theory and the Displacement of Politics (Cornell, 1993; awarded 1994 Foundations Best First Book Prize), Democracy and the Foreigner (Princeton, 2001), and Emergency Politics: Paradox, Law, Democracy (Princeton, 2009) which is the topic of today’s post. In short, Professor Honig challenges us to think about the interplay between democracy and emergency politics. Princeton has made the introduction available here as a pdf. In short, Professor’s investigation grew to encompass questions regarding “immigration politics, new rights claims, contemporary food politics and the infrastructure of consumption, and the limits of law during the Red Scare of the early twentieth century.” She drew on Moses Mendelssohn, Franz Rosenzweig, and other Jewish thinkers to provide a way for us to think about these problems. Here is Professor Honig sharing some of her ideas about emergency politics and how the book evolved.

BONNIE HONIG
onEmergency Politics: Paradox, Law, Democracy

Emergencies isolate people and make them afraid. Democracy, more than law, postulates courage and collectivity. More to the point, it is not as if we can separate law and democracy, as critics of majoritarianism like to do. What is done in the name of law or its suspension also depends upon the (de)mobilization of democratic energies.

My aim in writing Emergency Politics was to give a more democratic rather than liberal perspective on emergency, to acknowledge the importance of law to the emergency situation (as a resource in combating political violence, as a protector of rights in times of political difficulty) but also to point out that the turn to law, while necessary, is not adequate to respond to the demands of emergency politics.

One of the framing ideas of the emergency politics literature comes from Carl Schmitt, the German legal theorist who became a Nazi jurist. Schmitt talked about emergency situations as a state of exception. This is not a lawless situation, he argued, but rather a paradoxical situation of lawful lawlessness, one in which ordinary law is lawfully suspended. Yet, as Clinton Rossiter points out in his book, Constitutional Dictatorship, most major democracies have such emergency provisions.

Emergencies are temporary by their nature, Schmitt argued, and the suspension of ordinary law will eventually end, also lawfully, and normal law restored. But the decisionistic structure of sovereignty is always there, in the shadows. One of the things centrally important to Schmitt is how in the extraordinary moment of emergency the real architecture of sovereignty becomes visible and the decision (sovereign discretion), always a factor in political life, is laid bare.

As I investigated Schmitt’s ideas, I noticed that Schmitt analogized his idea of the legal suspension of law to theology’s miracle. Miracle, he said, is the suspension of nature’s normal order by the god who created it. In miracle, god’s decisionistic power is revealed for all to see. Miracle interrupts the ordinary causal world but does not destroy it. The normal pattern of nature returns in miracle’s aftermath. While this is indeed a familiar view of miracle, it is not the only one. Other contending views of miracle have put pressure on this one. One contender comes from within the Judaic tradition. It was developed by Franz Rosenzweig, who, it turns out, was writing at the same time as Schmitt.

What if we took seriously Schmitt’s analogy of emergency to miracle but read miracle in terms set by the contending tradition taken up by Rosenzweig? This alternative view of miracle is that miracle does not compel or command attention but is rather a subtle signal that solicits a response. Those who want to receive the signal, to witness it, have to be open to the possibility of miracle. This openness requires preparation, habituation to certain patterns of receptivity, the cultivation of a certain orientation to divinity, and periodic collective gathering. Orientation is not a solo affair. Without all this, like the proverbial tree falling in an empty wood, miracle may pass us by, unnoticed. We might say the same for democracy, which depends upon cultivation, participation, and periodic gathering. When democratic forms of life are interrupted by emergency, well-prepared subjects may experience a solicitation to respond democratically, to gather, to mobilize to protect and expand the values of their collective life. Without such orientation, however, and without its infrastructures of collective gathering, emergency has the opposite effect: it isolates people and embellishes the top-down forms of sovereignty that are characteristic of modern democracies in their state forms.

Suddenly the book was about Jewish political thought, or perhaps it became an exercise in it. Soon, almost unbeknownst to me, other chapters were featuring discussions of Judaic thought and culture. Chapter Two now featured a discussion of the Kantian demand that we have faith in progress and of Moses Mendelssohn’s brave refusal to adopt that view, though he was publicly pressured to do so. He was also called to renounce the Judaism that the Christian Enlightenment saw as a relic of a past left behind by Christ and reason. In Chapter Three I explored the ins and outs of discretionary and interpretative power license partly by looking at the creative routes taken by the rabbis to abolish the Biblical death penalty. In Chapter Four, I looked at how sovereign powers can deliberately mis-construe popular demands (and vice versa!) by developing a new reading of the chapter in the Book of Numbers where Miriam dies and Moses, who does not seem to know how to mourn her, is deaf to the calls of the people who love her as their prophet and thirst for her after her death. Suddenly, I couldn’t help but notice that Louis Post, a hero of Chapter Three, looked a lot like a rabbi (though he was not Jewish, of course).

It is tempting to think that whole history of the development of the US as a national security state was foreshadowed by the struggles between these two pairs of men, tracked in two of this book’s chapters: Schmitt and Rosenzweig, Post and Hoover. That history was affected, too, by some contingent facts: Post, Assistant Secretary of Labor under Wilson, who used his discretionary power to interpret the alien and sedition acts in ways that allowed him to free many of those rounded up in the Palmer raids, was 72 at the time of his encounter with the newly developing national security apparatus of J. Edgar Hoover, a zealous and energetic young man in his first job. And Rosenzweig was taken early, at the age of 41, by ALS, while Schmitt lived a long life, to the age of 96. How might US history have been different had the ages of my protagonists been reversed? What if in 1919-1920, Louis Post, had been just beginning his career as a young man? And what if J. Edgar Hoover, Post’s antagonist, had himself been 72 at the time, and fated to die just a few years later? What if we lived democratic life in the subtle shade of Rosenzweig’s idea of miracle, rather than that of Schmitt? What if it was Schmitt who had died tragically early at 41, struck down in his prime, and Rosenzweig who had lived to the ripe old age of 96?

How might just posing these questions, and exploring the alternative worlds they might disclose, affect what we see today, and what we find it possible to do tomorrow? The power of questioning should not be underestimated. Miriam knew its power. So did her brother, Moses, the lawgiver. It was shortly after she asked her younger brother – “Does the lord speak only through Moses?” — that she was struck with leprosy and had to be confined, away from the people who might have followed her. For the moment, and by way of a public health emergency, declared by Moses and accepted without question by the Israelites, the struggle between the people and the law(giver), the paradoxical struggle that in our own time is constitutive of democratic life, was settled.

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Deven Desai

Deven Desai is an associate professor of law and ethics at the Scheller College of Business, Georgia Institute of Technology. He was also the first, and to date, only Academic Research Counsel at Google, Inc., and a Visiting Fellow at Princeton University’s Center for Information Technology Policy. He is a graduate of U.C. Berkeley and the Yale Law School.
Professor Desai’s scholarship examines how business interests, new technology, and economic theories shape privacy and intellectual property law and where those arguments explain productivity or where they fail to capture society’s interest in the free flow of information and development. His work has appeared in leading law reviews and journals including the Georgetown Law Journal, Minnesota Law Review, Notre Dame Law Review, Wisconsin Law Review, and U.C. Davis Law Review.